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[U] Commonwealth v. Jay

Superior Court of Pennsylvania

October 25, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN JOSEPH JAY, III, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered January 31, 2013, In the Court of Common Pleas of Washington County, Criminal Division, at Nos. CP-63-CR-0000676-2010, CP-63-CR-0001103-2010, CP-63-CR-0002160-2010, CP-63-CR-0002708-2010, CP-63-CR-0002709-2010, CP-63-CR-0000214-2011.

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN and SHOGAN, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, John Joseph Jay, III, appeals from the orders denying his petitions for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A §§ 9541-9546. In addition, counsel has filed a motion seeking to withdraw. We grant counsel's motion to withdraw and affirm the orders of the PCRA court.

We summarize the history of this case as follows. On May 26, 2011, Appellant pled guilty before the Court of Common Pleas of Washington County in cases numbered: 676-2010, 1103-2010, 2160-2010, 2708-2010, 2709-2010 and 214-2011. At case 676-2010, Appellant pled guilty to access device fraud and was sentenced to a term of incarceration of two to four years, consecutive to the sentence imposed at case 1612-2009.[1] At case 1103-2010, Appellant pled guilty to theft by unlawful taking and was sentenced to a term of incarceration of one to three years, consecutive to the sentences at case numbers 1612-2009 and 676-2010. At case 2160-2010, Appellant pled guilty to theft by unlawful taking and was sentenced to a term of incarceration of one to two years, concurrent with the sentence imposed at case 1612-2009. At case 2708-2010, Appellant pled guilty to receiving stolen property and was sentenced to a term of incarceration of one to two years, concurrent with the sentence imposed at case 1612-2009. At case 2709-2010, Appellant pled guilty to criminal trespass and was sentenced to a term of incarceration of two to four years, concurrent with the sentence imposed at case 676-2010. At case 214-2011, Appellant pled guilty to theft by unlawful taking and was sentenced to a term of incarceration of six to twelve months, concurrent with the sentence imposed at case 676-2010. Appellant did not file a direct appeal from the judgments of sentence at case numbers 676-2010, 1103-2010, 2160-2010, 2708-2010, 2709-2010 or 214-2011.

On August 24, 2012, Appellant filed pro se PCRA petitions in the above captioned cases.[2] The PCRA court appointed counsel to represent Appellant, and on November 29, 2012, counsel filed amended PCRA petitions on Appellant's behalf. On December 21, 2012, the PCRA court appointed instant counsel to represent Appellant. On January 9, 2013, the PCRA court issued notice of its intent to dismiss the petitions pursuant to Pa.R.Crim.P. 907. On January 31, 2013, the PCRA court entered orders dismissing the PCRA petitions. These timely appeals followed.

After filing a brief on May 22, 2013, Appellant's PCRA attorney filed a motion to withdraw as counsel on May 29, 2013. In an order in the form of a rule to show cause, dated July 2, 2013, this Court directed counsel to properly inform Appellant of his intent to withdraw, pursuant to relevant case law. Counsel has since filed with this Court an appropriate Turner/Finley document.[3] [4]

When counsel seeks to withdraw representation in a collateral appeal, the following conditions must be met:

1) As part of an application to withdraw as counsel, PCRA counsel must attach to the application a "no-merit" letter,
2) PCRA counsel must, in the "no-merit" letter, list each claim the petitioner wishes to have reviewed, and detail the nature and extent of counsel's review of the merits of each of those claims,
3) PCRA counsel must set forth in the "no-merit" letter an explanation of why the petitioner's issues are meritless,
4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must include (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel;
5) The court must conduct its own independent review of the record in light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and
6) The court must agree with counsel that the petition is meritless.

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008) (internal punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d 607, 615 (Pa.Super. 2006)).

In the present case, counsel has complied with the requirements for withdrawal from a collateral appeal. In the motion filed with this Court, counsel alleged that he has reviewed the case, evaluated the issues, and concluded that the appeal is frivolous. Counsel has also listed the issue relevant to this appeal, and explained why, in his opinion, that issue is without merit. In addition, following the order of this Court dated July 2, 2013, counsel has included a letter sent to Appellant containing a copy of counsel's motion to withdraw and a statement advising Appellant of his rights to proceed pro se or through privately retained counsel. Thus, we will allow counsel to withdraw if, after our review, we conclude that the issue relevant to this appeal lacks merit.

We have discerned the following issue, which is presented in the brief filed by PCRA counsel on behalf of Appellant:

Whether the PCRA Court abused its discretion or erred as a matter of law in summarily dismissing Appellant's PCRA Petition.

Appellant's Brief at 2.

Our standard of review for an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa.Super. 2011), appeal denied, 42 A.3d 1059 (Pa. 2012) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005)). The PCRA court's findings will not be disturbed unless there is no support for them in the certified record. Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001)).

Initially, we must determine whether this matter is properly before us. We begin by considering whether the PCRA court accurately considered Appellant's petitions to be PCRA petitions.

The scope of the PCRA is explicitly defined as follows:
This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction.

42 Pa.C.S.A. § 9542 (emphasis added).

The plain language of the statute above demonstrates that the General Assembly intended that claims that could be brought under the PCRA must be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (emphasis in original). Where a defendant's claims "are cognizable under the PCRA, the common law and statutory remedies now subsumed by the PCRA are not separately available to the defendant." Id. at 1235 (citations omitted). By its own language, and by judicial decisions interpreting such language, the PCRA provides the sole means for obtaining state collateral relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (citations omitted). Thus, it is well settled that any collateral petition raising issues with respect to remedies offered under the PCRA will be considered to be a PCRA petition. Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa.Super. 2001).

The question then is whether the particular claims raised by Appellant in his petitions at issue are claims that were available to him under the PCRA. As the PCRA court aptly observed, Appellant's petitions allege the following cursory reasons as eligibility for relief: constitutional violations, ineffective assistance of counsel, a plea of guilty unlawfully induced, improper obstruction by government officials of the petitioner's right of appeal, and exculpatory evidence. PCRA Court Opinion, 3/26/13, at 8.

The relevant portion of the PCRA provides as follows:

(a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced

42 Pa.C.S.A. § 9543(a)(2).

As the PCRA court noted and our review reflects, Appellant's petitions attack the lawfulness of his guilty plea and raise cursory claims of constitutional violations, ineffective assistance of counsel, a plea of guilty unlawfully induced, [5] improper obstruction by government officials of the petitioner's right of appeal, and exculpatory evidence. Because such claims are cognizable under the PCRA, the PCRA court had no authority to entertain the claims except under the strictures of the PCRA.

A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time requirement is mandatory and jurisdictional in nature and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence "becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3).

However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited exceptions to the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.[6] A petition invoking one of these exceptions must be filed within sixty days of the date the claim could first have been presented. 42 Pa.C.S.A. § 9545(b)(2). In order to be entitled to the exceptions to the PCRA's one-year filing deadline, "the petitioner must plead and prove specific facts that demonstrate his claim was raised within the sixty-day time frame" under section 9545(b)(2). Carr, 768 A.2d at 1167.

Our review of the record reflects that Appellant's judgment of sentence became final on June 27, 2011, [7] thirty days after the trial court imposed the judgments of sentence and Appellant failed to file a direct appeal with this Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant did not file the instant PCRA petitions until August 24, 2012. Thus, Appellant's PCRA petitions on appeal are patently untimely.

As previously stated, if a petitioner does not file a timely PCRA petition, his petition may be received under any of the three limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.A. § 9545(b)(1). The record reflects that Appellant did not specifically raise any of the timeliness exceptions in his PCRA petitions. Consequently, because the PCRA petitions were untimely and no exceptions apply, the PCRA court lacked jurisdiction to address the claims presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack jurisdiction to reach the merits of the appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.Super. 2002) (holding that Superior Court lacks jurisdiction to reach merits of appeal from untimely PCRA petition). Also, having conducted an independent review of the record in light of the PCRA petitions and the issues set forth therein, as well as the contents of counsel's motion to withdraw, we agree that the PCRA petitions are meritless and allow counsel to withdraw.

Motion to withdraw granted. Orders affirmed.

Judgment Entered.


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